Sep 18, 2020

More Perfect: Sex Appeal

We lost a legend. Supreme Court Justice Ruth Bader Ginsburg died on September 18th, 2020. She was 87. In honor of her passing we are re-airing the More Perfect episode dedicated to one of her cases, because it offers a unique portrait of how one person can make change in the world. 

 This is the story of how Ginsburg, as a young lawyer at the ACLU, convinced an all-male Supreme Court to take discrimination against women seriously - using a case on discrimination against men. 

This episode was reported by Julia Longoria.

Special thanks to Stephen Wiesenfeld, Alison Keith, and Bob Darcy.

Supreme Court archival audio comes from Oyez®, a free law project in collaboration with the Legal Information Institute at Cornell.

Support Radiolab today at Radiolab.org/donate

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JAD ABUMRAD: This is Radiolab, I’m Jad Abumrad. Today a story from our producer Julia Longoria.

 

JULIA LONGORIA: So I’ve been working on an episode about sex discrimination for like months now.

 

JAD: Yeah

 

JULIA: And we’re supposed to release it...

 

NEWS MONTAGE

 

JULIA: This week!

 

NEWS MONTAGE

 

JULIA: The story we’re gonna tell is not about sexual harassment, but I can’t think straight with all the stuff that’s happening

 

NEWS MONTAGE

 

JULIA: And I can't help but think that we’ve seen this before, this outcry for public change and a backlash.

 

NEWS CLIP: They claim there’s a war on women out there. No one takes them seriously

 

NEWS CLIP: If you can’t handle some of the basic stuff that’s become a problem in the workforce today, like, you don’t belong in the workforce

 

JULIA: Like we’re in our respective corners and

 

CLIP: We need men to help us

 

JULIA: Letting out a big scream

 

CLIP: How did people not know?

 

JULIA: But, when things quiet down, will there be a change?

 

JAD: And what kind of change is the kind that will stick? Today’s story is about a time in the not so distant past when there was a similarly loud raucous division in our country over sexual equality. And one woman

 

JULIA: Quietly

 

JAD: Strategically

 

JULIA: Laid the foundation for real change

 

INTRO MUSIC

 

JAD: Here we are. I’m going to ask you and utterly false question which is where would you like to start?

 

JULIA: [laughs]

 

JAD: As if we haven’t been doing this for so damn long.

 

JULIA: OK. So let me outline the basic dilemma that’s at the heart of the story here,

 

JAD: All right.

 

JULIA: and I’m gonna put it to you as a question.

 

JAD: Bring it.

 

JULIA: If you were to do a control+F in the Constitution, how many times do you think the word sex comes up?

 

JAD: Oh. That’s interesting. Six? I don’t know I’m guessing. What, what’s the answer?

 

JULIA: It’s one. One time in the 19th amendment which grants people the right to vote based on sex.

 

JAD: Really?

 

JULIA: Yes.

 

JAD: That’s the only time?

 

JULIA: That’s the only time. Which is crazy because we already have--

 

JAD: What is it, like a non--is there a sex word that’s not sex, like gender or something something?

 

JULIA: No. Nothing.

 

JAD: Is there like ladies in the Constitution?

 

JULIA: No

 

JAD: Women?

 

JULIA: No.

 

JAD: Really?

 

JULIA: OK. Constitutionally, women have a problem, which is that basically we’re not in the Constitution, except like in this one little spot. So when it comes to discriminating against women, some people have argued that you--there’s nothing in the Constitution that says you can’t do it.

 

ANTONIN SCALIA: Certainly the Constitution does not require sexual discrim- discrimination on the basis of sex. The Constitution doesn’t require it. It simply doesn’t forbid it.

 

JULIA: That’s the late justice, Antonin Scalia.

 

ANTONIN SCALIA: It doesn’t. Nobody ever voted for that. So where do you get it from?

 

JAD: There was nothing that said that? I mean not those words explicitly but there was nothing that says you can’t discriminate?

 

CRISTIAN FARIAS: Uh. not on the basis of sex.

 

JULIA: That’s legal editor Cristian Farias.

 

CRISTIAN: We had a fourteenth amendment that told people that we’re equal under the law. That everyone has equal protection of the laws.

 

JAD: But doesn’t that say? I mean that’s kinda? Eh? No?

 

MARTHA GRIFFITHS: They never applied the 14th amendment to women.  They

didn’t apply the 15th.

 

JULIA: That’s Martha Griffiths, Congresswoman

 

CRISTIAN: When you think about the history of the 14th Amendment

 

JULIA: As legal editor Linda Hirshman says...

 

LINDA: The 14th Amendment was passed in the aftermath of the Civil War.

 

JULIA: Along with the 13th and the 15th

 

LINDA: 13th Amendment abolishing slavery.

 

JULIA: The 15th amendment essentially giving black people, or black men the right to vote

 

CRISTIAN: If you understand the 14th Amendment to be part of that trio of amendments, you’re like Oh. Okay. It was meant to bring equality to black people.

 

MARTHA GRIFFITHS: When the 15th Amendment had been written which said that every citizen could vote, in the name of heavens, why couldn’t women vote? Why did you have to have the 19th Amendment? Well of course the answer was they didn’t consider women people.

 

MUSIC

 

JULIA: There was this basic assumption in the law that, you know, equality for black people is one thing, but men and women? They’re different.

 

MUSIC SHIFT

 

WENDY WILLIAMS: It was the case that the Supreme Court had never met a distinction between men and women that it didn’t like.

 

JULIA: Wendy Williams, law professor emeritus at Georgetown.

 

JULIA: What are some, like, greatest hits of the ridiculous distinctions?

 

WENDY WILLIAMS: Okay. Here-- There was a case called Bradwell, and it was 1873 or 4. In that case, a woman wanted to become a lawyer

 

JULIA: Illinois Bar said no.

 

WENDY WILLIAMS: The justices said that that was a perfectly good rule because the justice system could be seen as not appropriate for women. Now, let’s jump clear into the next century here

 

JULIA: 1948

 

WENDY WILLIAMS: This case was called Goesaert v. Cleary that went to the Supreme Court. And the issue was whether women could be bartenders. The Court thought that that was pretty humorous that it made sense that women could not be bartenders unless their husbands or fathers were in charge of the bar.

 

MUSIC

 

JULIA: Both those laws, you know women are not supposed to be at the bar...

 

WENDY WILLIAMS: At either bar!

 

JULIA: Yeah (laughs), right.

 

WENDY WILLIAMS: Those two cases represent attitudes almost 80 years apart that women belonged in the private sphere. That was not only their place; it was built into their bodies.

 

JULIA: And that was the assumption for a long, long time.

 

WENDY WILLIAMS: But just about ‘67

 

MUSIC

 

DICK CAVETT (1970): There are a lot of women in this country who feel that they’re being pushed around,

 

WENDY WILLIAMS: … things had started to come to a boil.

 

DICK CAVETT: and they’ve become very vocal. They call themselves the women’s liberation movement.

 

GLORIA STEINEM (1971 Address to the Women of America): Sex and race, because they are easy, visible differences, have been the primary ways of organizing human beings into superior and inferior groups.

 

JULIA: So in the late 60s and early 70s, people like Gloria Steinem….

 

GLORIA STEINEM: ...We are talking about a society in which there will be no roles other than those chosen or those earned.

 

AUDRE LORDE: Free from the diseases of racism

 

JULIA: Audre Lorde…..

 

AUDRE LORDE: Of sexism, of classism, and of homophobia

 

JULIA: They get some traction saying, OK. It’s time to put us in the Constitution. Hurry up.

 

ARCHIVE: Some historians say it’s a constitutional convention for women.

 

WOMAN: I move the adoption of the following resolution.

 

JULIA: And what you see is this push for something called the Equal Rights Amendment

 

WOMAN: The Equal Rights Amendment should be ratified.

 

*ERA CHANTS*

 

REPORTER:   What are your hopes for it? Do you think it will be ratified?

 

MARTHA GRIFFITHS: It will be ratified early next year. I am quite sure of that. In 1975 it will be ratified.

 

JULIA: But it didn’t get the votes in 1975.

 

BETTY FORD: I hope that 1976 will be the year...

 

JULIA: Or in 1976.

 

ANNOUNCER: A special report on the 1977 national women’s conference.

 

JULIA: Or in 1977.

 

REPORTER: And the movement is stalled.

 

JAD: Why, what stalled it?

 

JULIA: Well, a lot. But much of the credit goes to this woman.

 

ANNOUNCER: Phyllis Schlafly of Alton, Illinois.

 

JULIA: A woman named Phyllis Schlafly.

 

PHYLLIS SCHLAFLY: I would like to thank my husband Fred for letting me come today. I love to say that because it irritates the women’s lib-ers more than anything that I say.

 

JULIA: She was a lawyer and a self-described housewife who started a movement, called STOP ERA.

PHYLLIS SCHLAFLY: The whole thing is misrepresented as a women’s rights amendment. In fact, the principal beneficiary will be men. it will give men a great opportunity to get out from under their obligations. Their obligations…

 

JULIA: Her position was that the Equal Rights Amendment would actually strip women of this special privilege that they have that comes from being a woman

 

PHYLLIS SCHLAFLY: I think the laws of our country have given a very wonderful status to the married woman. And the wife has a great deal of many rights. For example she has the legal right to be supported by her husband.

 

JULIA: And she said, if this amendment passes there will be certain unintended consequences.

 

PHYLLIS SCHLAFLY: The Equal Rights Amendment says you cannot discriminate on account of sex. And if you want to deny a marriage license to a man and a man or to deny a homosexual the right to teach in the schools or to adopt children, it is on account of sex that you would deny it, and that would be unconstitutional under ERA.

JULIA: And that argument caught on.

 

VID: I would caution the members of this platform committee from the passage of an ERA amendment that none of us would like to see happen.

 

WOMAN: I think that families would, generation after generation, deteriorate. I think that there would be homosexuals that would expect preferential treatment.

 

SONG: He said brother we’re all in danger. You gotta hear what I have to say. Cause you know what’s going to happen if they pass the ERA. There will be women in all of our bathrooms, women using all our stalls. They’ll be wasting the paper towels. They’ll be hogging the urinals. They’ll be pushing the old soap squirters. Pushing hot air dryers too. If they pass the ERA, lord I don’t know what we’re going to do.

 

LINDA HIRSHMAN: Had the Equal Rights Amendment passed…

 

JULIA: Legal editor Linda Hirshman again.

 

LINDA ...it would have looked a lot like the racial civil rights movement did.  But the Equal Rights Amendment did not pass.

 

JULIA: It fell three states short. To get a constitutional amendment passed, it turns out you need three quarters of state legislatures to say they want it. That is 38 out of 50. They only ever got 35.

 

JAD: Dude

 

JULIA: So the question is, if you want to get equal rights for women written into the law, what do you do? There’s no ERA. The women’s lib movement sparked a backlash. Like what do you do? Well. Enter stage left...

 

MUSIC

 

OBAMA: There she is. The notorious RBG

 

SFX

 

JULIA: Ruth Bader Ginsburg.

 

CLIP: RBG can do 20 push ups, and not the so-called girl kind.

 

JULIA: Now before she was a Supreme Court Justice..

 

CLIP: She was a feminist icon.

 

JULIA: Or a work out sensation...

 

CLIP: Show us all the moves.

 

JULIA: Before all that...

 

WENDY WILLIAMS: Ruth Ginsburg, she was at the ACLU.

 

JULIA: This was in the 70s.

 

WENDY WILLIAMS: And one of the characteristics of Ruth Ginsburg, which exists to this

day...

 

WARREN E. BURGER: Very well.

 

JULIA: You can hear this. It’s the first time she argued in front of the Supreme Court in 1973.

 

WENDY WILLIAMS: When you’d ask her a question, there would be silence. Enough silence…

 

WARREN E. BURGER: Mrs. Ginsburg? [PAUSE]

 

WENDY WILLIAMS: ...to make a person nervous and start trying to help her answer the question.

 

JULIA LAUGH

 

WARREN E. BURGER: Ginsburg?

 

WENDY WILLIAMS: You had to wait.

 

JULIA: But we can imagine it was in one of those long pauses that Ruth Bader Ginsburg rescued some of the key principles behind the ERA, re-packaged them, and marched them in through a side door.

 

RUTH BADER GINSBURG: Mr. Chief Justice and may it please the Court, sex like race is a visible characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified, or at least un --

 

MUSIC

 

JAD: Wait, so back it up a second. What exactly did RBG do?

 

JULIA: So let me walk you through it now because it’s--it’s beautiful. The ERA fight is underway, and RBG and her colleagues are watching this happen, right. And they’re getting worried. What if the ERA doesn’t pass, so what are we going to do if that’s the case? How are we going to get equal rights for women? So they decided, OK. As an alternate approach, let’s go back to the 14th Amendment...

 

CLIP: The 14th Amendment’s immediate objective was to provide national protection for the newly freed slaves.

 

JULIA: ..You know, which as we said, was designed from the beginning to be only about race.

 

CLIP: But its sweeping provisions suggest broader objectives. The states were prevented from depriving any person equal protection of the laws.

 

JULIA: Well, it says the word person. So that should include women.

 

JAD: Yeah.

 

JULIA: If they could just get the courts to see it that way, then by default almost, we would have a sort of ERA.

 

LINDA HIRSHMAN: And accordingly, the task was showing that the racially inflected

14th Amendment applied to sex.

 

JULIA: What about the law is she trying to change? What does she want the court to say?

 

LINDA HIRSHMAN: She wants the court to say that sex will be treated just like race.

 

JULIA: And here’s why that’s so important. When the Court sees racial discrimination happening, under the 14th Amendment it takes a really hard line. It looks at it really really closely. Or at least it’s supposed to. Whereas other kinds of discrimination, not so much. Because actually, some discrimination is necessary.

 

LINDA HIRSHMAN The law discriminates. It has to.

 

JULIA: It discriminates between 18 year olds and 17 year olds. Between criminals and non-criminals.

 

LINDA: There would be chaos otherwise, right?  

 

JULIA: But the court’s decided that RACE is gonna be a big red flag. They’re going ask the governments, the legislatures, presidents… to have a COMPELLING reason...

 

LINDA: A compelling state interest!

 

JULIA: ...to do race discrimination.  Otherwise, it’s going to be unconstitutional.

JULIA : You with me so far?

 

JAD: Yes. To to discriminate based on race, you have to pass a really super hard test.

 

JULIA: And by the way, the legal name for this test it’s...

 

JAD: Oh God.

 

JULIA: STRICT SCRUTINY.

 

JAD: Oh.

 

JULIA: I know, they should have called it like, we mean business or something like that. But anyway, the point was like they took it seriously. Which you know back in the day, they weren’t doing with sex discrimination at all. Because when legislatures would come up with these laws -- like this ‘women can’t be bartenders’ law -- The Supreme Court would be like, you know…, you guys probably have a good reason for that...

 

CRISTIAN: it doesn’t have to be THE reason. It could just be A reason.

 

JAD: It doesn’t have to be very good.

 

CRISTIAN: It doesn’t have to be good. They could maybe even make it up on the fly. It just has to be a reason for upholding this law.

 

JULIA: Like in the case of the bartender law, bars are dangerous. Women need protection from them.

 

CRISTIAN: And courts would be like OK. Sure.

 

JULIA: So RBG needed a way to convince the Court to be as intense about sex discrimination as they were about race discrimination. But how do you convince an audience of men, who are used to discriminating on the basis of sex, who have been doing it for years... How do you convince them that discrimination is a bad thing?

 

RUTH BADER GINSBURG [C-SPAN]: I think people who want to keep women down would like nothing better than women to go off in a corner and speak only to women.

Nothing would happen.

 

JULIA: This is her giving a recent talk about her 1970s strategy.

 

RBG: You need to persuade men that this is right for society.

 

JULIA: Part One of her strategy: choose your words carefully.

 

RBG: I had a secretary at Columbia. Who said I’m typing these things for you and jumping out all over the page is sex sex. [LAUGHS] Don’t you know that the audience you are addressing, the first association of those men with the word sex is not what you’re talking about. [LAUGHS] So why don’t you use a grammar book term. Use gender.

 

JULIA: Because you know the word sex has a charge to it. Gender is cooler. And Part Two of her strategy, choose your cases carefully. This is all happening in the 70s as RBG is the head of the ACLU Women’s Rights Project. So she’s deciding which kinds of cases the ACLU is going to support as they make their way to an all-male Supreme Court. And her strategy was if we live in a man’s world right now, we need to find cases that these nine men at this moment can handle.

LINDA HIRSHMAN: So for example, early on in her tenure at the Women’s Rights Project, the other lefty lawyers are suggesting that the women’s movement needs to take up the cause of lesbian rights, and she says … NOT YET.

 

RBG [C-SPAN]: And I think go slow is the right approach

 

JULIA: She said first, we need to go after that small and insidious idea that the Supreme Court had been keeping alive for years

 

PHYLLIS SCHLAFLY: The laws of our country have given a wonderful status to women.

 

JULIA: That Phyllis Schlafly idea that discrimination is actually good for women.

 

RBG: Gender classifications were always rationalized as favors to women.

 

JULIA: And so RBG decided not just to bring cases where women were the victims of discrimination

 

CURTIS CRAIG: Okay. My name is Curtis Craig.

 

JULIA: She brought cases where men were the victims.

 

JULIA: Who were you as an 18 year old?

CURTIS CRAIG: Oh that’s a great question. I was like any 18 year old young man. Invincible. Thought I was quite the ladies’ man. You name it.

 

JULIA: He made it into Lambda Chi Alpha at Oklahoma State and he was living...

 

[FRAT CHANTS]

 

JULIA: ...At the frat house.

 

CURTIS CRAIG: Our fraternity was primarily made up of wrestlers so it was uh. When you went down the hall, *YOUTUBE BODY SLAM* you were about to be taken down at any moment so. You’d be thrown into the walls and you’d leave a body print.

 

JULIA: What do you mean like an indentation literally in the wall?

 

CURTIS CRAIG: Yeah.

 

JULIA: Oh my god.

 

CURTIS CRAIG: Yeah. It was amazing.

 

CURTIS CRAIG: There was a lot of partying going on, of course.

 

CHANTING

 

JULIA: Lot of beer.

 

CURTIS CRAIG: The yard would be filled with beer cans.

 

JULIA: And here’s the key. If they wanted to get all that beer...

 

MUSIC

 

JULIA: ...they had to enlist the help of the ladies.

 

CURTIS CRAIG: Yeah I mean--

 

JULIA: The sorority sisters.

 

CURTIS CRAIG: You would have a female buy you beer and you’d go out and party.

 

MUSIC

 

JAD: They needed the women to buy the beer?

 

JULIA: Yep

 

JAD: Why?

 

JULIA: Because in Oklahoma state at the time..

 

RBG: Oklahoma had a very silly law. Girls could buy beer at age 18, but the boys had to

wait until 21.

 

CURTIS CRAIG: There was something about the level of maturity I guess for women versus men at that time.

 

JULIA: The basic principle was that boys got into more car accidents so they should be trusted with less beer?

 

JAD: Huh

 

JULIA: And did that make you angry?

 

CURTIS CRAIG: Oh absolutely. Well it was extremely unfair. Yeah, I would say it made-- I think most men angry at the time.

 

JULIA: And a Supreme Court case was born.

 

RBG: So the thirsty boys at a fraternity-- brought this case.

 

JAD: RBG gets involved in this beer case?

 

JULIA: Yes

 

JAD: But this is a situation where women have rights men don’t have. Why would she want to argue this case? I’d imagine she’d want the opposite.

 

JULIA: Well this is where her strategy is kind of like a Trojan Horse. If you look at this case, right. On the outside it looks like a case about men being discriminated against.

 

JAD: Yeah

 

JULIA: But, if you think about it, beneath that discrimination is actually this kind of unspoken idea about women. So go with me on this, right.

 

JAD: Yeah.

 

JULIA: If men are irresponsible, they can’t handle beer, then women--

 

LINDA: Girls are more responsible and well-behaved.

 

JULIA: They’re more delicate. They could be trusted with something like beer because they won’t abuse it, you know. So with that line of thinking, it’s not long before you’re trying to protect women, protect them from you know scary places. Like bars or courtrooms or-- political office. Using this case, RBG is able to walk into the Court this discrimination about men, but also, the discrimination against women that’s attached to it--or inside of it [laughs].

 

JAD: Whoa. That’s clever.

 

JULIA: We’re just getting started

 

MUSIC

 

JAD: More Perfect continues in a minute.

 

ADVERTISEMENT

 

JA: This is More Perfect, I’m Jad Abumrad. I’m here with Julia Longoria, who is telling the story of a case involving boys and beer that became a Trojan Horse...

 

MUSIC

 

JAD: ...in the battle for women’s rights. Now the story of the Trojan Horse, maybe you know this, it’s you know ancient Greece. You’ve got Sparta fighting Troy. Spartans want to get into the city of Troy, but it’s this giant walled city, too big. They can’t get in. And so Odysseus comes up with this clever plan. We’ll give the Trojans this giant wooden horse. They’ll bring it into their city. They’ll think it’s a gift, that we’re retreating. Which is what they thought. And then at night our soldiers who are hidden inside the horse will come out.

 

MUSIC

 

JAD: And they will take the city. Now in our case, Odysseus is RBG, the city she’s trying to get into is the all male Supreme Court. But, in order for this very admittedly imperfect analogy to work, we need someone in the horse to come out. The warrior in the horse, the warrior.

 

JULIA: And in Our case, that woman warrior?

 

MUSIC

 

JULIA: She didn’t even know she was going to go into battle.

 

CAR MUSIC

 

JAD: Julia, you take it from here

 

JULIA: So I got in the car and I drove a long time..

 

JULIA: Tiny little gravel road leading up to a narrow street of houses.

 

JULIA: to Sparta, NC.

 

JAD: It’s called Sparta?

 

JULIA: I KNOW.

 

JULIA: Cows and horses and Trump signs [CAR DOOR SLAM] Tractor out front. No trespassing sign.

 

JULIA: And so I walk up to this house. It’s this beautiful, cream colored cottage perched on top of a mountain.

 

JAD: Wow.

 

JULIA KNOCKS START

 

JULIA: And I can hear.. [MUSIC START] Whitney Houston’s “Saving All My Love For You” blasting.

 

CAROLYN: Did you have any trouble?

JULIA: Hi. No. I didn’t. Are you Carolyn? Hi very nice to meet you.

 

JULIA: And I meet. Carolyn Whitener

 

CAROLYN: I’m 76, soon be 77.

 

JULIA: She…

 

CAROLYN: I have a beer. Do you want a beer?

JULIA: ...immediately offers me a Coors.

 

CAROLYN: I’ve got a Coors Light.

JULIA: Yeah?

 

JULIA & JAD LAUGH

 

*BEER OPENS*

JULIA: Will you have a beer with me?

CAROLYN: No I can’t. I’m a diabetic. [LAUGHS] I can drink a little but not much.

JULIA: Thank you.

CAROLYN: And I’ve got some brownies over here.

 

JAD: What does she look like? Describe her.

JULIA: Reddish blonde hair, green eyes, she’s wearing golden hoops. She has like this.. This air about her that she could have been a beauty queen, y’know? But she also could’ve been like a car mechanic.

 

CAROLYN: Well tell me about yourself.

JULIA: Well I am --

 

JULIA: We get to talking. I tell her a little bit about who I am, about the story. She actually told me like upfront she’s like--

 

CAROLYN: I’m proud of the young women. I have a granddaughter that’s--

 

JULIA: I’m so proud of you. Your generation. They’re finishing the fight I started. I was essentially like no no..

 

JULIA: This stuff like your story has like a huge impact on like women like me. You know?

 

CAROLYN: I can’t imagine. [LAUGHS] But see my name was never tied in with it. It was always Craig’s name. So you know it wasn’t that big a deal.  

 

MUSIC

 

JULIA: She told me she grew up bouncing around different oil fields.

 

CAROLYN: I was an oil field trash. That’s what we were called. Oil field trash. [LAUGHS]

 

JULIA: That meant Carolyn and her brother and sister split the school year between two or three schools a year.

 

CAROLYN: We moved a lot.

 

JULIA: She said school didn’t come easily to her.

 

CAROLYN: But my dad, he taught all three of us how to weld. He was a welder. How to

work on a car.

 

JULIA: She was very independent. And when she was about 13, they moved to Chickasha, Oklahoma.

 

MUSIC

 

JULIA: And that is where she met Dwayne.

 

CAROLYN WHITENER: That was the first boy I went with.

 

JULIA: They met in high school. And they were roughly the same age but he was three years ahead of her in school.

 

JULIA: And what attracted you to him?

 

CAROLYN: His mind. He had an excellent mind. And he was just a farm boy with no education. He never went to college but he could’ve been about anything he would’ve wanted to have been.

 

JULIA: What do you think attracted him to you? Like what do you think he saw in you?

 

CAROLYN: I was somebody new in town.

 

JULIA: Talking to Carolyn, I got the sense she didn’t have any shortage of suitors.

 

CAROLYN: But I married him when I turned 18 [PHONE RINGING] Oops. I don’t know who that is. I better turn that off. And when I married my husband I was equal to him except the money and he didn’t think anybody could handle that but him. [LAUGHS] He acted like he was raising me and he probably was [LAUGHS]

 

JULIA: She says she was really comfortable with him. He was a quiet man with this brilliant mind.

 

CAROLYN: He just - he was pure German, girl. Have you ever met a German man? OK. They are in total control.

 

JAD: And how does Carolyn connect to the case with the frat boys and RBG?

 

JULIA: OK. Here’s what happens. It’s 1962, Carolyn and Dwayne are about 20 years old at this point. And they move to a town called Stillwater, OK, to open a business. And Stillwater..

 

[MORE BEER CHANTING]

 

JULIA: ..is a college town. It’s THAT college town. OK, you’ve got Oklahoma State University right there, tons of fraternities including Lambda with the wrestlers. Huge homecoming, drawing over 40,000 alumni.

 

CAROLYN: We didn’t know what homecoming was. Had no idea what homecoming was!

 

JULIA: But shortly after moving to Stillwater, they opened the doors to the Honk and Holler.

 

MUSIC

CAROLYN: And where we went in was just about three blocks, four blocks from the college. And we went into business there.

 

JULIA: A drive-thru convenience store

 

CAROLYN: It was like a real old gas station with an oil pit in the floor

 

JULIA: Here’s how it would work. Customers pull up to the side of the convenience store and

 

CAROLYN: They’d drive through.

 

JULIA: Honk their horn. Holler their order.

 

CAROLYN: And you’d have to go out and wait on them. Come back in. Get what they wanted. And take it back out.

 

JULIA: So it’s a lot of in and out and in and out. All night long.

 

CAROLYN: You wear tennis shoes out real fast. (LAUGHS) So it was all sheer energy and guts.

 

JULIA: Homecoming night...

 

CAROLYN: We were supposed to close at 11.

 

JULIA: The store is FLOODED with customers.

 

CAROLYN: Til I think 2 or 3 o’clock in the morning.

 

JULIA: They’re like thrilled because they’ve never run a business by themselves before, and all these college kids are coming in and buying Coors beer. Including, of course, a steady stream of girls buying beer, presumably for their boyfriends.

 

CAROLYN: And it-- Yeah I never did get to see homecoming. All I saw was cars coming in and out.

 

JULIA: Fast forward a few years. It’s 1972 back at the University.

 

CURTIS CRAIG: He was tall, had long blonde hair.

 

JULIA: Curtis Craig’s buddy named Mark Walker...

 

CURTIS CRAIG: was the president of the Lambda Chi house at the time.

 

JULIA: ...is in a political science class. And the professor is talking about the whole fight for the ERA, which is happening right at that moment. And at this point Oklahoma hasn’t ratified the ERA. And somehow the conversation turns to this beer law. Mark’s like, talk about discrimination: this beer law is discrimination against us!

 

CURTIS CRAIG: And the professor challenged him about doing something about the beer laws if he was going to complain about them.

 

JULIA: And so one day...

 

CAROLYN: I was behind the counter, people coming in and out.

 

JULIA: Mark Walker walks into the Honk n Holler

 

CAROLYN: A young man came in to talk to me.

 

JULIA: She doesn’t really have time to talk. She’s running in and out.

 

CAROLYN: But he stood there.

 

JULIA: Waiting patiently.

 

CAROLYN: I bet he was in there four hours. And was looking at the beer license.

 

JULIA: He looks at the beer license and notices that Carolyn’s name is the one on it because actually..

 

CAROLYN: My husband lost his license.

 

JULIA: ...after he sold beer to a young man.

 

CAROLYN: So he put them in my name.

 

JULIA: Anyway, at a certain point, in between all the honks and hollers...

 

CAROLYN: He asked me what I thought about the beer laws. And I told him. I was very vocal about it. I always had been.

 

JULIA: She says, it doesn’t make any sense. We send these young men off to war

 

CAROLYN: They were being drafted at 18

 

JULIA: But we don’t let them drink beer when they come back?

 

CAROLYN: Was that just?

 

JULIA: Not to mention the liability issues. You have these 18 year old girls coming in and buying beer, slipping it to their boyfriends. How am I supposed to stop that?

 

CAROLYN: You can’t prove who buys what.

 

JULIA: So eventually when Mark Walker asked for her help...

 

CAROLYN: He said he was going to do a term paper.

 

JULIA: She was like, sure, why not?

 

CAROLYN: I was always willing to help him because they had helped us get started. And I still thought it was a term paper.

 

JULIA: So was he not being completely honest with you then?

 

CAROLYN: Well I didn’t hear half of what he said. I was busy every time he came in so, you know, it wasn’t that important at the time. So I didn’t think anymore about it. He left. My husband was gone. He was out of state workin’. And I didn’t even say anything to him about it. It wasn’t important. You know I just thought it was a conversation. [LAUGHS]

 

JULIA: But it wasn’t just a conversation. Because before that meeting, Mark had gone out looking for a lawyer.

 

CURTIS CRAIG: That’s correct.

 

JULIA: And Curtis and Mark and the other frat brothers had tried to raise some money.

 

CURTIS CRAIG: That was flawed in a campus town. Everybody uses their last dollar for that last beer.

 

JULIA: But they managed to find a lawyer who’d do it for cheap.

 

FRED GILBERT: Alright well I’m just Fred Gilbert, attorney at law, no big deal.

 

CURTIS CRAIG: I remember him always wearing his military boots. Actually I believe he wore them even to the Supreme Court.

JULIA: Fred had worked on another male discrimination case in the past. And to him, this case was pretty straightforward

 

FRED GILBERT: Men couldn’t buy beer until they were 21, but the most irresponsible and drunken woman in the state could buy it in unlimited quantities at 18. Well that was discrimination. Was kind of more a male rights case. Well it was!

 

JULIA: And do you remember corresponding with Ruth Bader Ginsburg?

 

FRED GILBERT: Yes. I knew Ruth Bader Ginsburg … before she was on the Court.

 

JULIA: Somehow, Ruth Bader Ginsburg noticed this case. And she watched, as Fred made his way up the courts, losing at every level. And by this point, Ruth Bader Ginsburg was head of the Women’s Rights Project at the ACLU, She’d already argued a few cases before the Supreme Court, which had inched the Court, slowly, toward this idea that sex was like race. And she thought that this case was interesting. She gave Fred a call.  

 

FRED GILBERT: You know we have a problem in a personal relationship. There was no question I was something of an unreconstructed male chauvinist and she was not.

 

JULIA: Fred did not see this as a women’s rights case.

FRED GILBERT: It was just kind of an unnecessary insult to men for no reason at all so.

 

JULIA: And Ruth, looking at this cause thought: No, Fred, it’s more than that.

 

WENDY WILLIAMS: It didn’t matter to her if the plaintiff was a man or a woman. Because in most of those cases, the discrimination against the man was derivative of a prior and worse discrimination against the woman.

 

SEXIST ANNOUNCER MAN: Here’s to the ladies. The fair and the weak. How do they do it? Where do they find all that energy? That seemingly inexhaustible store of pep and ginger.

 

JULIA: Again, Ruth was after the stereotype of women that was nestled inside the beer law. That women are more responsible and well behaved. But in order for her to make that connection, she needed Fred to write his brief in a way that would be useful to her. So refer not just to male discrimination but discrimination based on gender.

 

FRED: Well I supported her. I just wasn’t shall we say a militant feminist.

 

JULIA: So, Ruth had her work cut out for her.

 

LINDA HIRSHMAN: At this point she was kind of used to dealing with these roobs from the stix.

 

JULIA:  So with other local lawyers that she’d worked with in the past, Ruth had been more forceful, insisting that SHE make the argument. But that had backfired.

 

LINDA: So she like was like okay you argue it.

 

JULIA: She wrote to Fred telling him that she didn’t need to be the one to present oral argument before the court. She was fine if he’d do it. But she very gently, very persistently was able to convince him to let her help him with his legal brief.

 

CAROLYN: But uh I think it was a couple of months later because my husband was out

of state every month.

 

JULIA: Meanwhile back at the Honk and Holler, Carolyn has no idea what’s going on.

 

CAROLYN: No.

 

JULIA: No idea.

 

CAROLYN: I got a phone call, my husband was on the phone. Well I had salesmen in and I had people coming in and out.

 

CAROLYN: And he was irate. He was furious. I couldn’t figure out what was going on.

 

JULIA: She was like case? What are you talking about?

 

CAROLYN: Well he had picked up a newspaper in North Carolina in a bank. And it was on the front page of the newspaper. With my name and about us suing. It looked like we sued everybody in the state of Oklahoma that was in office all the way down to the garbage man.

 

JULIA: He was like what did you do? How--we don’t want to get mixed up in this. We don’t want our name on this we don’t want to make a fuss, like. This could hurt business. Like how dare you.

 

CAROLYN: You know I didn’t what had happened. I really didn’t know.

 

JULIA: And eventually she figured out it must’ve been that kid who came in here. And now it’s at the Supreme Court. What?

 

CAROLYN: I was back and forth on that phone with him trying to wait on customers and I

bet that took about three hours and he would not let up. I mean he kept calling back and calling back. He called a lawyer. He was mad. And then the last phone call he said I am flying back in and he said you pick me up.

 

JULIA: A couple nights later she drove to the airport.

 

CAROLYN: Picked him up and he was still mad. That was the longest car ride.

 

JULIA: As they drove back she says he just lectured her the whole ride

 

CAROLYN: I just listened to him.

 

JULIA: What did he say?

 

CAROLYN:  I don’t know what he said word to word, I just know he was strong with what he said. With my husband it was best to just be silent. I was never afraid of him but I knew how far to push it. By the time we got from the airport to the other side it was about an hour and twenty minutes. That’s a long hour and twenty minutes in the car where you can’t get out.

 

JULIA: And over the course of that hour and twenty minutes, she said something in her just kind of shifted. And at a certain point she basically turned to him and was like, no. Like I know you want me to drop this case, but I’m gonna fight this.

 

CAROLYN: He threatened me every which way. I didn’t budge. And probably the reason why I didn’t budge, because he fought me so hard on it. You know I believed in it. I had never stepped out like that. That’s the first time I really put my foot down and didn’t budge. I gave so much to him. I mean I didn’t get a salary for 25 years. I didn’t ask for it.  I figured we were equal. I figured I worked the same hours he did. And I figured I stood beside him. Not behind him and not in front of him.

 

JULIA:  October 5, 1976, the day of oral arguments, the lawyer Fred Gilbert…

 

CAROLYN: I haven’t run across many people that I didn’t care for. I didn’t care for Fred. He he was so pushy.

 

JULIA:  ...insists that Carolyn needs to come to DC

 

CAROLYN: I didn’t have the money to go and I didn’t want to go. I’d never traveled anywhere by myself.

 

CURTIS CRAIG: What I recall that day

 

JULIA: And Curtis Craig came too.

 

CURTIS CRAIG: I was dressed up.

 

JULIA: Suit and tie

 

CAROLYN: I had borrowed a dress, plastic, looked like leather.

CURTIS CRAIG: Walking up those stairs.

CAROLYN: Wore high heels.

CURTIS CRAIG: I remember that distinctly

CAROLYN: It was so big.

CURTIS: Beautiful building.

CAROLYN: I felt like I was walking forever up those stairs. I was burning up, I was sweating.

 

OYEZ: We’ll hear arguments next in 175628, Craig against Borum.

 

OYEZ: Mr. Gilbert you may proceed whenever you’re ready.

 

JULIA: Fred Gilbert starts things up. He walks up to the podium in with his combat boots.

 

FRED GILBERT: The law is broad and all encompassing in its sweep. It says that all females even those that are the most drunk, most alcoholic, most immature, most irresponsible may purchase 3.2 percent beer at age 18 in absolutely unlimited quantities

 

OYEZ: The law doesn’t say it in quite those words, does it?

 

LAUGHTER

 

JULIA: And by all accounts, he didn’t exactly kill it.

 

FRED GILBERT: No your honor. And the law doesn’t say quite the words that all males--

FRED GILBERT: The justices just kept hammering

 

FRED: You honor the--

 

OYEZ: The only way he can get relief is to move his age back and drink

 

FRED: Hammering

 

FRED: In a technical sense

 

OYEZ: In a technical what--

 

FRED: All right you honor that is technically -- the way the complaint is drafted and what

is before the court--

 

OYEZ: Well but you say what’s before the court. What’s before the court is your

complaint

 

CAROLYN: Curtis was sitting beside me. And I kept punching him. What does that mean? What are they talking about? What does that mean? And he kept saying shh. Shh. Just be quiet till it’s over. I’ll tell you!

 

[ARGUING]

 

CAROLYN: I didn’t understand what they were doing

 

FRED: The beer law we challenge today was originally enacted in 1890

 

JULIA: But she says what caught her ear was a moment when Justice Rehnquist

 

CAROLYN: when he called me

 

JUSTICE: When you say we, you’re referring to your client who is the tavern keeper?

 

CAROLYN: A saloon keeper

 

FRED: Yes your honor, and--

 

CAROLYN: I’ll tell you, when he called me that in the Supreme Court I came so near standing up and correcting him, and I’ve always wondered to this say why I didn’t

 

JUSTICE: Well if he technically turned 21--

 

JULIA: As arguments went on, Fred did at least try to do the thing Ruth wanted him to do..

 

FRED GILBERT: Your honor I would say anything could be… you could pass a law saying no negro will drive while intoxicated.

 

JULIA: Compare sex discrimination to race discrimination

 

FRED GILBERT: Now this relates to the public thing. But the thing is you can’t discriminate even for something like public safety on the basis of certain criteria.

 

WILLIAM REHNQUIST: Well has the court ever held that discrimination of this sort is of the same class as discrimination on the basis of race.

 

FRED GILBERT: Your honor this court has come very very close.

 

JUSTICE: Well I asked you a question, has it ever held--

 

FRED: No. It has never held it is totally to be treated the same way as race your honor

 

JULIA: To make a long story short, by the end of oral argument, things weren’t looking great for Fred

 

WILLIAM REHNQUIST: I mean I think that depends on the thrust of our decision.

FRED GILBERT: Alright. Alright. Let me explain this. First of all--

 

JULIA: At one point he even interrupts a Supreme Court justice, which you don’t do that

 

FRED: Supporting the denial of beer to young men 18 to 21

 

JULIA: It just--yeah. Wasn’t happening

 

FRED GILBERT: Well, I don’t have time for a parting thought, I thank you for your time.

WARREN BURGER: Thank you gentlemen, the case is submitted

 

[a beat]

 

JAD: Well. You win some you lose some, right ladies?

 

JULIA: What, no no no

 

MUSIC IN

 

JULIA: Here comes the craziest part of the story.

 

JAD: OK

 

JULIA: It’s like a double Trojan horse. Horse within a horse, because after the Fred Gilbert debacle, there was another case at the supreme court that afternoon.

 

WARREN BURGER: We’ll hear arguments next in …

 

JULIA: and it just so happened.

 

OYEZ: ...75-699 Matthews against Goldfarb.

 

JULIA: That the case was being argued

 

OYEZ: Mrs. Ginsburg?

 

JULIA: By none other than Ruth Bader Ginsburg

 

LINDA: Hm mhm Somehow she organized to get that argued the same day.

JULIA: That was on purpose?

LINDA: Yeah oh yeah.

JULIA: Oh my god. That’s genius. Wait wait wait.

LINDA: Yeah no,  she’s a genius.

 

RUTH BADER GINSBURG: Mr. Chief Justice, and may it please the court.

 

JAD: Wait you’re saying she somehow managed to get in the court on another case on the same day?

 

JULIA: So I couldn’t confirm that for sure. I don’t even know how you would do that. But what I can tell you is that she arranged to go second. Because she knew there was probably a good chance that Fred

 

LINDA: The completely incompetent lawyer

 

JULIA: Was gonna be, you know, less than amazing

 

LINDA: The court was asking him questions that he was completely incapable of answering. So finally the court just went, oh nevermind. And then when Ruth stood up to argue her case, they asked her about Craig v. Boren.

 

JUSTICE STEPHENS: We heard a case this morning, just to be concrete, involving a law that would not permit males to make certain purchases that females could make. And it was attacked as discrimination against males.

 

RBG: Yes.

 

STEPHENS: My question is whether we should examine that law under the same or a different standard than if it were discrimination against the opposite sex.

 

RBG: My answer to that question is no, in part because such a law has an insidious impact against females.

 

JULIA: And then she told justice Stephens, even in this case, where it seems like men are the ones that are being discriminated against, beneath that discrimination is a more insidious one.

 

RBG: Against females. It stamps them docile, compliant, safe to be trusted--

 

STEPHENS: But your answer always depend on their finding SOME discrimination against females

 

STEPHENS: Is it your view that there is no discrimination against males?

 

RBG: I think there is discrimination against males

STEPHENS: And if there is…

RBG: Yes.

STEPHENS: ..such discrimination against males is it to be tested by the same or by a different standard from discrimination against females.

 

RBG: My response to that Mr. Justice Stephens, is that almost every discrimination that operates against males operates against females as well.

 

STEPHENS: Is that a yes or a no answer?

 

STEPHENS: I just don’t understand you are you trying to avoid the question?

 

RBG: No I’m not trying to avoid the question. I’m trying to clarify the position that I don’t know of any line that doesn’t work as a two-edged sword.

 

JULIA: They go back and forth a bit. Justice Stephens is basically like why do you keep insisting on this, why do you keep saying that discrimination against men contains within it discrimination against women. They’re different. And she’s like no, they’re not different.

 

STEPHENS: So your case depends then on our analyzing this case as a discrimination

against females

RBG: No. If my case depends on your recognition that using gender as a classification,

resorting to that classification, is highly questionable and should be closely reviewed

 

JULIA: She makes this point again and a again. All discrimination based on gender is bad and it should be checked with something at least approaching that hardcore standard that the court uses for race

 

CAROLYN: That was really something, seeing this little woman get up.

 

RBG: I don’t know of any purely anti-male discrimination.

 

CAROLYN: I’ll never forget that. Because she was small.

 

RBG: In the end the women are the ones who end up hurting. Yes.

 

CAROLYN: She’s so small in person. But she had a lot of force.

 

WARREN BURGER: Mrs. Ginsburg, the case is submitted.

 

JULIA: About two months later...

 

OYEZ: The judgment and opinion --

 

JULIA:  December 20, 1976

 

OYEZ: Craig against Boren.

 

JULIA: Justice William Brennan announces that the court

 

BRENNAN: We reverse!

 

JULIA: Is striking down the beer law.

 

OYEZ: We hold that Oklahoma’s gender-based differential does constitute an invidious violation of the equal protection clause

 

JULIA: This silly beer case was the first time the court clearly said, that when you discriminate based on gender, you need to pass a harder test. It wasn’t as rigorous as race. It wasn’t STRICT SCRUTINY. They settled on a standard that we now call intermediate scrutiny. And it was pretty damn close.

 

JULIA: RBG would go on to strengthen this standard over time, but this was the case that first got us a kind of equal rights amendment through a side door.

 

RBG: We wish that the court had picked a less frothy case to make that announcement LAUGHTER, but of course we were very pleased that after that--

 

JULIA: The day the decision was announced

 

CAROLYN: I had just came in from work, I was at home by myself there in Stillwater.

 

JULIA: She’s by herself in the kitchen

 

JULIA: And the phone rings. Who calls?

CAROLYN: Who called? National news called to tell me that we had won… I didn’t ask what we had won. I didn’t ask anything. I just said okay.

 

JULIA: She hung up

 

CAROLYN: Stood there for a little bit and then Craig called

 

*MORE BEER CHANTS*

 

CAROLYN: And he wanted me to come down and celebrate with the guys there at his fraternity. Yeah

 

JULIA: She told him, no thanks. *CHEERS STOP* And then she hangs up the phone. And she gets one more phone call.

 

CAROLYN: And it was my husband. He was in North Carolina again and he heard he heard something about the case but he didn’t hear it all. And he said what’s going on now? And I said we won.

 

JULIA: And he says, is it over?

 

CAROLYN: I said it’s over. It’s totally over with. He said good. And he hung up. I fixed me a very good drink. Vodka and coke. Sat down in the middle of the floor and that’s the way I celebrated. I drank that drink all by myself and it was over with. It was over with.

 

MUSIC

 

JULIA: Carolyn says that for decades after this case she didn't understand what it meant. She didn’t understand what it meant as a legal principle or that it ushered in this new era for women in this country. But even so, in her own life, this case was a beginning.

 

CAROLYN: A couple of years after we won that case, I went in to China right after it opened up

 

JULIA: She saved up money and went with her sister-in-law, because Dwayne didn’t want to come with them.

 

CAROLYN: I did. I was so curious. And we never went like the tourists went. We’d get on

a train and if we saw something we wanted to stop and see, we would stop. We never had a schedule. And I never really did go to shop. I was just curious about the people. And how they lived. I saw so much and I talked to so many people while I was gone that uh, it was like a hunger. And you grow from it. And I just wanted to see things. And that just opened the doors for me.

 

MUSIC

 

JAD: What happened to Carolyn in the end?

 

JULIA: She and Dwayne divorced in 2007

 

JAD: And when you said she didn’t know the effect her case had for decades, like when did she figure it out? Like what--how?

 

JULIA: So in around 1996 this professor guy named Bob Darcy calls her up and invites her to speak at a class. And she’s kind of learning from the students and the professor like what the case actually stood for and then eventually the professor puts her in touch with Ruth Bader Ginsburg and they meet again in person. And it sort of starts to dawn on her

*Papers shuffling*

CAROLYN: One of the letters… I don’t know if that’s the one.

 

JULIA: And when we were sitting in her bedroom, she was looking through some old letters and pulled out one with the Supreme Court seal on it.

 

JULIA: Can you read it?

CAROLYN: No I don’t have my glasses you’ll have to read it.

JULIA: OK. It says: Dear Carolyn, As I told you in 1996 when we celebrated the 20th anniversary of Craig v. Boren, YOU are the true heroine of that case. Although no financial gain was at stake for you, you realized the potential the case had in paving the way for the court’s recognition of equal citizenship stature of men and women as Constitutional principle.

 

CAROLYN: yeah. I was going to get that framed, but I haven’t done it yet.

 

JULIA: Signed Ruth Bader Ginsburg.

 

CAROLYN: Mhm. I need to get it laminated before I have it framed.

 

MUSIC

 

JAD: Producer Julia Longoria. I’m Jad Abumrad, thank you for listening. And here is More Perfect and Radiolab’s David Gebel to read the credits.

 

CREDITS